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I published my second book last month. This ties me with erstwhile Cincinnati Reds manager Sparky Anderson, who greeted the publication of his second book by noting that he had now written more books than he had read. It always amazes me that someone is willing to publish my stuff. Probably amazes you, too. I write the column for myself. It’s a safety valve. I write it to get the basic lunacy that is a large part of my psyche out of my system. Writing about seal penises and monkey smugglers and Kirk Kerkorian’s divorce bleeds off the silliness, so I don’t feel the need to write opinions that say, “Your sentence of 25 years to life is affirmed, but did you hear the one about the nun and the rabbi and the parrot?” So the fact that someone whose last name is “Inc.” thinks it’s a good idea to perpetuate these musings in book form — while personally gratifying — does shake my confidence that we’re in for an economic recovery any time soon. That’s the kind of Enron-quality corporate decision I would expect to depress the market for weeks. Lord knows, if I had any stock, I’d sell it after hearing that. But I mention this not merely as a warning that corporate America is not as solid as you may have thought — or even as a warning that you may want to stay out of bookstores for a while — but because I want you to understand that I’m not an elitist. I’m painfully aware of my shortcomings, and because I work in a profession populated almost entirely by smart people, I am reminded daily of my limitations. LOOK OUT BELOW But all that having been said, I must admit to a certain trepidation about publishing a book in the early 21st century. Because when you publish a book — or, for that matter, write a column — you’re making an almost Kierkegaardian leap of faith: You’re betting there are people out there who want to read. My confidence in this assumption has been badly shaken by an article from The New York Times. According to the Times, the Texas Court of Appeals (Third District, Austin) has decided, 2-1, that giving someone the finger is not a criminal breach of the peace. As phrased by Pulitzer Prize-winning journalist Ralph Blumenthal, “The ancient gesture of digitus impudicus — ‘impudent finger’ to the Romans — may be ‘repugnant, distasteful and crass,’ and beyond free speech protection, but directed by one motorist against another does not by itself constitute disorderly conduct, a Texas appeals court has ruled.” Now, I have to admit to a certain amount of what the Germans call Schadenfreude over the fact that three justices in Texas not only had to rule on this issue, but also couldn’t agree and presumably expended a great deal of sweat and stomach acid haggling over it. There’s an undeniable “better them than me” quality to this case. But after I’d exorcised that childish sentiment, I was required to face the facts of the story, none of which leaves much room for the conceit that modern man has progressed much from the Neanderthal poker game that opens “2001: A Space Odyssey.” I’ve read this story a dozen times, and I not only can’t find anybody associated with it who might buy my book, I’m not sure I can find anyone likely to be a bigger reader than Sparky Anderson. Apparently, John Pastrano and his wife were motoring along Highway 183 when Robert Coggin “proceeded to tailgate the car, flash his headlights and motion for the car to move into the right lane so that he could pass.” Pastrano did that, and Coggin, as he drove past, flipped him the bird. OK, that’s the script of our little drama. Now let’s look at the players. A 36-year-old computer chip designer, Coggin was driving a “1994 Chevrolet Caprice with spotlights on the side and handcuffs dangling from the rearview mirror.” This is not good news for authors. Here’s a guy with enough education to be designing computer chips, and he’s not only a rude, angry sonofabuck, but he’s also driving around with spotlights on his doors and handcuffs dangling from his rearview mirror. Is this guy typical of the habitués of the dot-com industry? These are the cognoscenti of the New Age? This does not augur well for my chances of retiring off book sales. And Pastrano, who was so offended by the gesture that he immediately pulled over and dialed 911, said he yielded to Coggin’s tailgating and brights-flashing because he “thought he was being pulled over by an unmarked police car.” What makes this remarkable is that Pastrano works for the Hays County sheriff’s office. IT’S TEXAS, AFTER ALL So the guy who works for the sheriff’s office thinks you can identify an unmarked police car by the big honking spotlights on the doors and handcuffs dangling from the rearview mirror. What does that tell you about the educational system in this country? Either Pastrano, despite his law enforcement connection, has no clue how an unmarked car would look, or — even more frightening to contemplate — police officers are driving around Texas with spots on the doors and handcuffs hanging from the mirrors and only police insiders have figured out that they’re law enforcement. What’s more, Pastrano’s testimony was the key to the case. He was, after all, the witness who testified to being offended by the gesture to the point where “immediate violence” was likely. To convict Coggin, as the jury did, they had to believe that his vulgarity “incited an immediate breach of the peace.” As an ex-prosecutor, I have to assume the state’s attorney recognized this as a key piece of testimony. Surely he prepped Pastrano for his testimony. Assiduously. And Pastrano had months — maybe years — to think about this key question: Did the gesture incite you to violence? That’s the case. Without that testimony, you got nothin’. Here is Pastrano’s answer to the question, an answer rightly cited by the appeals court as key to its decision: “It made me angry. It kind of, you know, resulted back into, you know, as if I wanted to react to it, as in an angry mode, you know, to somewhat defend, you know, myself, as well as the disrespect of my wife.” Whaddya think? This guy ever read a book? This guy ever read anything longer than the instructions to his Game Boy? And how many books you think I can sell to the prosecutor whose response to that answer was presumably a triumphant, “Aha! Well, that oughta do it. The People rest, Your Honor.” So I’ve got no sales in Texas’ high-tech industry, law enforcement community, legal profession, or, for that matter, anybody else south of Red River. If Texas is typical, I’m in trouble. I thought maybe I might get a couple of Texas judges, but the opinion in this case says, “The opprobrium of this gesture may be in decline.” Nobody who talks like that is gonna read my stuff. If you can recognize declining opprobria, you’re flying so far over my head, I probably can’t even hear your engines. GRAMMAR AND OTHER OPINIONS So what about the guy who wrote the story? Pulitzer Prize-winning journalist. That’s an audience I’d like to have, right? That’s a guy who reads. Uh-uh. This is a sentence from his article. Here’s how it appeared in The New York Times, the paper of record for all carbon-based life in the entire solar system. It said, “Mr. Pastrano, 24, reached at home in San Marcos, referring questions to a sergeant in the Hays County sheriff’s office, where he works.” That’s the whole sentence. I know it’s a sentence because it starts with a capital and ends with a period. Go ahead, diagram that puppy. Find the predicate in that sentence. When you do, call the word police, because they’re out doing fingerprint lifts in the copy editor’s office, convinced that any sentence in The New York Times must have started out with a predicate. I am obviously not on the cutting edge of American prose. Mr. Blumenthal wouldn’t give me a second look. I dunno. I’ve always considered myself a Darwinian. But when giving somebody the finger herniates a court of appeal and fractures the ratiocinative processes and language skills of everyone involved, I gotta wonder if maybe we peaked somewhere around Jack London — who, I’m quite sure, never would have called the police over a rude gesture. All of which I could deal with if it weren’t for the book thing. I don’t much mind Western civilization going to hell in a handbasket. But I hate the fact that Mom’s gonna have to buy another 5,000 books. She can barely get her car into the garage as it is. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]. Read more columns like this in A Criminal Waste of Time, available at www.therecorder.com/bedsworth. This column first appeared in The Recorder, the American Lawyer Media daily newspaper in San Francisco.

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